This week's ruling by the U.S. Supreme Court in the school integration cases involving Seattle and Louisville was disappointing but not devastating to the cause of promoting integration in public schools. Nor was it surprising given the increasingly conservative bent of the majority of justices on the bench.
This decision will prevent school districts from promoting integration and diversity among students using the kinds of mechanisms that were employed by the school districts involved in the lawsuit. In the case before the court, Seattle and Louisville occasionally based student assignments on race when voluntary choices by parents threatened the district's desired range of racial balance in their schools. In Louisville, for instance, the district encouraged white parents to send their youngsters to academically attractive magnet programs in predominantly minority schools, while enabling black parents to enroll their children in academically strong schools outside their neighborhoods. But if the proportion of black pupils threatened to exceed 50 percent or dip below 15 percent, then youngsters could be turned down in order to keep enrollment within the desired range racially.
Nevertheless, there was a welcome silver lining in Thursday's ruling. The decision was issued by four justices who opposed the consideration of race in student assignments under any circumstances. They were joined in the opinion by Justice Anthony Kennedy, who opposed what the school districts in this case were doing, but who also signaled that he would find other more generalized methods of promoting integration and diversity constitutionally acceptable.
More specifically, Justice Kennedy indicated that districts can locate new schools with an eye toward increasing diversity, consider neighborhood demographics when they draw attendance lines, and engage in targeted recruiting of students and teachers. He went on to opine that school districts "are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race."
Justice Kennedy's consenting opinion clearly implies that when presented with the kinds of circumstances that he deems acceptable, he would vote to uphold these practices. Presumably he would be joined by the four justices who dissented from the ruling, thus creating a five-vote majority in support of the consideration of race in a generalized way.
For those of us who believe strongly that school districts should advance diversity and that appropriate consideration of race is one of the ways to do that, this ruling, while a setback, provides rather clear signals about how to promote school integration and diversity in a way that a majority of Supreme Court justices probably would find acceptable if challenged in the future.
Justice Kennedy's posture is a relief because it preserves the cherished notion that fostering integration constitutes a compelling state interest that justifies the consideration of race. The Supreme Court faced virtually the same question several years ago in determining whether racial diversity constitutes a similarly compelling state interest in public higher education.
Writing then for the court in the Grutter case, now-retired Justice Sandra Day O'Connor declared that it does. Among the many justifications she cited that satisfied the criteria for a compelling state interest, diversity promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races. She referenced numerous studies showing that student body diversity promotes learning outcomes and better prepares students for an increasingly diverse workforce and society.
Justice O'Connor further emphasized that these benefits are not theoretical. They are real. She cited the supportive briefs filed by major American businesses arguing that "the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas and viewpoints."
Diversity and integration are flip sides of the same coin. The ruling in Grutter applied to public universities. Yet virtually all of the justifications cited there apply with equal force to public schools that prepare and funnel future citizens into higher education, the workforce and American society.
If anything, the argument that integration and diversity comprise a compelling state interest is even more convincing in the case of public schools because a vastly broader swath of future citizens would experience the advantages of diversity. Looking to the future, the U.S. economy will rely increasingly on minority workers, entrepreneurs and taxpayers who represent a growing segment of the population. Yet black and Latino pupils in particular are concentrated in the nation's lowest performing schools with the least able teachers and most inadequate facilities. The kinds of measures endorsed by Justice Kennedy that foster integration and diversity will enable minority youngsters attend good schools where they can maximize their talent and potential.
Back when I was in law school in the mid-1960s, a maverick professor named Fred Rodell used to preach that the ideology of Supreme Court justices mattered as much and possibly more than their respect for precedent. Traditionalists among legal scholars dismissed Rodell's views as borderline heresy. But given the unmistakable philosophical swing of the high court in the aftermath of President Bush's appointments, Fred Rodell clearly was one prescient law professor.
Years ago, A. Bartlett Giamatti, the late president of Yale University, observed that universities should be tributaries to society, not sanctuaries from it. Happily, Justice Kennedy, who holds the pivotal swing vote on the high court, believes the very same is true of America's public schools.